Citation Nr: 1121791
Decision Date: 06/06/11 Archive Date: 06/20/11
DOCKET NO. 09-19 067 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska
THE ISSUE
Entitlement to service connection for a right knee disability, to include arthritis.
REPRESENTATION
Appellant represented by: Calvin Hansen, Esq.
ATTORNEY FOR THE BOARD
C. J. Houbeck, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1971 to December 1974.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 Regional Office (RO) in Lincoln, Nebraska rating decision, which denied the claim on appeal.
The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required.
REMAND
The Veteran is seeking entitlement to service connection for a right knee disability, to include arthritis. After a thorough review of the Veteran's claims file, the Board has determined that additional development is necessary prior to the adjudication of the claim.
Initially, the Board notes that at the time of the November 2008 rating decision and April 2009 statement of the case (SOC) the Veteran's original claims file, which contained his service treatment records, was lost. In April 2010, however, after the case had been certified to the Board, the original claims file was found and the original file and temporary file subsequently were associated. The original claims file included the Veteran's original service treatment records, including a date stamp indicating that the service treatment records had been received by the RO in December 2004. The temporary claims file included notice from the National Personnel Records Center (NPRC) that all records had been sent to the RO in December 2004. Thus, the Board concludes that all service treatment records from the NPRC have been associated with the claims file.
The service treatment records include a normal entrance examination with respect to the lower extremities. A September 1971 notation from the orthopedic clinic, however, stated that the Veteran had injured his right knee and had spasms and pain in the medial aspect on examination. The record indicated that the Veteran was admitted to the hospital. A September 1972 record noted that the Veteran had hurt one his knees two days earlier playing football. On examination, there was moderate soft tissue swelling, tenderness over the medial aspect, and limited flexion. The impression was knee sprain. An April 1974 dental record noted that the Veteran had been hospitalized for fourteen days in October 1973 and for five days in November 1973, on both occasions for knee trouble. The Veteran's August 1974 separation examination report noted that he had a right knee operation in 1971 and a summary of diagnosis was status post synovectomy of the right knee.
VA's duty to assist also includes a duty to provide the Veteran with a proper medical examination or opinion when warranted. In this respect, the Board notes that in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations that would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.
While several of these records do not specify whether the problems were with the right knee or the left knee, there is objective evidence of right knee problems in service. After service, VA treatment records indicate that the Veteran was electrocuted in 1989, resulting in the amputation of his bilateral upper extremities and an above the knee amputation of the left lower extremity. There is no evidence of treatment for right knee problems. Indeed, in February 2004, for example, the Veteran explicitly denied any problems with the right lower extremity. That said, the Veteran's June 2008 claim included the contention that he had arthritis of the right knee. The Board will presume that the Veteran is contending that he has been diagnosed by a competent medical provider with right knee arthritis. In that regard, the Board notes that a lay person is competent to report a contemporaneous diagnosis of a disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). While it is unclear from the record whether there has been a continuity of right knee problems from service or other indication that any current right knee problems are related to his military service, such may be implicit in the Veteran's claims. As such, the Board finds that the evidence of in-service surgery on the right knee and the Veteran's current allegation of right knee arthritis associated with his military service are sufficient to meet the low threshold required for an examination under McLendon.
In addition, the RO should request all hospital records from during the Veteran's period of service from the base hospital at Fort Sill, Oklahoma.
Accordingly, the case is REMANDED for the following action:
1. Obtain all hospitalization records during the Veteran's period of service from the base hospital at Fort Sill, Oklahoma. Any negative responses should be documented in the file and the Veteran must be provided with an opportunity to provide such medical records.
2. After the above evidence is obtained, to the extent available, schedule the Veteran for appropriate VA examination for his right knee. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, eliciting a history directly from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should offer an opinion as to the most likely source of the Veteran's complaints, to include offering an opinion as to whether any diagnosed right knee disability had its onset during military service or is otherwise related to service. In that regard, in addition to the above, the examiner specifically is requested to consider, and discuss as appropriate, the Veteran's service treatment records documenting right knee problems, including the August 1974 separation examination indicating a right knee synovectomy in 1971. In addition, the examiner is requested to discuss, as necessary, the impact of the Veteran's 1989 electrocution and subsequent left above the knee amputation on any currently diagnosed right knee disability.
It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided.
3. After the above is complete, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).